Tehniat Zia vs Nbp etc.

ICA. No.121/2019

Stereo. H C J D A 38 Judgment Sheet

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN.

Judicial Department

ICA. No.121 of 2019

Tehniat Zia. Versus The President, National Bank of Pakistan, etc.

JUDGMENT

Date of hearing: 15.11.2021 Appellant by: Mr. Tahir Mehmood, Advocate. Respondents by: Mr. Muhammad Siddique Mughal, Advocate.

Mehr Qamar Hussain Sandal, DAG.

MUHAMMAD RAZA QURESHI, J: Through this Intra Court Appeal under section 3(2) of Law Reforms Ordinance, 1972, Appellant has challenged the Order dated 17.12.2018 passed in Writ Petition No.15652/2012 by learned Single Judge, whereby the Writ Petition filed by the Appellant was dismissed.

2.Through her Writ Petition the Petitioner had claimed her appointment at a suitable post according to her qualification under Circular bearing No. HRN &AG/DRQ/2010/593 dated 11.01.2010 and Circular bearing No. HRM &AG/DEQ/2011/1103 dated 02.12.2011 creating an employment opportunity for sons and daughters of in- service, regular, deceased and retired/GHS/VHS Optants in clerical and non clerical cadres for employees of Respondent, National Bank of Pakistan (hereinafter referred to as the “NBP Circulars”).

3.The Appellant who claimed to be the holder of Master Degrees in the subjects of English and Business

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Administration agitated through invoking the constitutional jurisdiction of this Court that according to the qualification she fulfills the criteria laid down in the NBP Circulars and since her father retired as Senior Vice President, National Bank of Pakistan in year 1994 and passed away in March, 2000, therefore, she has a right to appointment.

4.Upon a query the Appellant conceded that the brother of the Appellant had already been inducted into service with the same Bank on contract basis and his services were subsequently regularized in accordance with law yet she claims that the Respondent Bank is bound to enforce her right under NBP Circulars as she has an independent right.

5.There is no cudgel to the legal position that National Bank of Pakistan passes the ‘Function Test’ and falls within the definition of ‘person’ in terms of article 199 (5) of the Constitution of the Islamic Republic of Pakistan as held by the Hon’ble Supreme Court of Pakistan in case titled Salahuddin and 2 others vs. Frontier Sugar Mills & Distillery Ltd., Tokht Bhai and 10 others (PLD 1975 SC 244) in the following terms:-.

“Now, what is meant by the phrase performing functions in connection, with the affairs of the Federation or a Province." It is clear that the reference is to governmental or state functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e. by the Federal Government or a

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Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory corporations for undertaking many such functions. particularly in the industrial and commercial spheres, in the belief that free from the inhibiting effect of red-tapism, these semi- autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities.

Examples of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province.”

[Emphasis added]

6.The crucial question emerges in this situation is whether the Circular/instrument under which the Appellant is asserting her right is statutory or non statutory in its nature, scope and ambit? The National Bank of Pakistan was duly constituted as a body corporate under National Bank of Pakistan Ordinance No.XIX of 1949. Its few Rules, Regulations, Circulars and Notifications are statutory in nature whereas the remaining are non statutory, hence, not enforceable in exercise of Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. For example, National Bank of Pakistan (Staff) Service Rules, 1973 were framed with the previous approval of the Federal Government by virtue of

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the powers under section 32 of the National Bank of Pakistan Ordinance, 1949, hence these rules were statutory in nature whereas National Bank of Pakistan (Staff) Service Rules, 1980 were non statutory, as the Federal Government’s prior approval was never obtained. Reliance in this regard is placed on National Bank of Pakistan and another vs. Punjab Labour Appellate Tribunal and 2 others (1993

SCMR 105).

7.In the instant case we have noticed that the subject matter NBP Circulars are not protected by any statutory backing rather have been issued for the human resource management merely with the approval of Board of Directors of National Bank of Pakistan and therefore, cannot be construed having a statutory backing, therefore any right arising under this instrument is not amenable and cannot be enforced by this Court in exercise of Constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Reliance in this regard is placed on Abdul Wahab and others vs. HBL and others (2013 SCMR 1383) and Pakistan International Airline Corporation and others vs. Tanweer-Ur-Rehman and others

(PLD 2010 SC 676).

8.We have also noticed that the Writ Petition filed by the Appellant suffered from laches as her father retired from service in year 1994 and died in year 2000 and Writ Petition was filed by her in year 2012, therefore, we hold that the Writ Petition filed by the Appellant suffered from inordinate delay and she was indolent in asserting her purported right and neither a satisfactory nor a plausible explanation has been pleaded. Reliance in this regard is placed on Jawad Mir

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Muhammadi and others vs. Haroon Mirza and others

(PLD 2007 SC 472).

9.We, therefore, see no legal infirmity in the Impugned Order and maintain the same, and consequently this Intra Court Appeal is dismissed.

(Ch. Muhammad Masood Jahangir) (Muhammad Raza Qureshi) Judge Judge

*Nadeem